KulwantSingh vs State of H.P.

Surjit Singh, J.—Petitioner has filed the present revision petition,under Sections 297 and 402 of the Code of Criminal Procedure, for setting aside judgment dated 11.10.2004 of learned Sessions Judge, Hamirpur and judgment dated 25/15.11.2003, passed by the trial Magistrate, in a case,under Sections 279 and 304A IPC, which was registered against the petitioner at Police Station, Nadaun.

A report was lodged on 16.11.1999 by one Smt. Krishna that her sister''s son Virender Kumar, when coming towards her village on Nadaun side, by scooter No. HP-55-2729, had been hit by a jeep-trolla, which was going from Nadaun side towards Hamirpur and that as a result of that accident, her nephew Virender Kumar fell alongwith the scooter on the road and died. She also reported that after Whet her repor t ers of the `l ocal papers may be al l owed t o see the j udgment ? causing the accident, driver of trolla sped away, along with jeep-trolla, from the spot. On the basis of that report, case was formally registered vide FIR Ext.PW7/F. Police went to the spot. Scooter and dead body of Virender Kumar were found lying on the left side of the road, leading from Hamirpur to Nadaun. On the right side of the same road on Kutcha portion, broken pieces of indicator, side glass and rod of side mirror glass were lying, which were taken into possession.

During the course of investigation, on the very day of the accident, it came to light that PW-5 Sudesh Walia and one Cahnderdeep, whose house is situated by the side of the road close to the place of accident, had witnessed the accident and they had noted the number of jeep-trolla. Number of jeep-trolla intimated by them to the police was HP-55-1152. On the basis of this registration number of the jeep-trolla, petitioner was arrested on 20.11.1999, as he was in custody of that trolla. Inspection of jeep-trolla indicated that its driver side had been recently painted near the mudguard and at footrest. Its indicator, on driver side, also appeared to have been recently replaced.

Petitioner was challaned. He was tried for offences u/s 304A and 279 IPC. Prosecution examined two witnesses, who claimed to have witnessed the accident, namely PW-6 Sudesh Walia and PW-11 Kuldeep Kumar. It did not examine Chanderdeep, who allegedly saw ...3...the accident taking place and apprised the police of registration number of jeep-trolla that caused the accident.

Learned trial Magistrate held the petitioner guilty of offence, u/s 279 read with Section 304A IPC and sentenced him to undergo rigorous imprisonment for one year and to pay a fine of Rs. 5000/- for offence, u/s 304A IPC and rigorous imprisonment for six months and fine of Rs. 1000/-, for offence, u/s 279 IPC, vide judgment dated 25.11.2003. Appeal filed by the petitioner in the Sessions Court has been dismissed, vide judgment dated

I have heard learned Counsel for the petitioner as also the learned Assistant Advocate General and gone through the record.

Case of the prosecution is that the petitioner was

Above stated position apart, evidence of the prosecution, with regard to the identification of the jeep that caused the accident, is shaky and doubtful. Case was registered on the basis of information supplied by PW-1 Krishna. She did not know the number of trolla. Also, she did not get recorded in the earliest version that there was any eye witness. PW-6 Sudesh Walia claimed to have witnessed the accident. He, however, did not inform either the police or the relatives of the scooterist. No doubt, in his testimony as PW-6, he did state that from the spot he went to the house of scooterist to inform his family members and after informing them he went to his place of work, but statement of PW-3 Kishan Chand, husband of PW-1 Krishna, shows that the witness (PW6 Sudesh Walia) did not inform anybody. PW-3 Kishan Chand stated that when the father of the scooterist, on return from his office in the evening, was informed that his son had died in an accident, he had a heart attack. The fact that the father of deceased came to know about the accident only in the evening, when he returned from the office, falsifies or at least renders doubtful the testimony of PW-5 Sudesh Walia that he had gone to inform the family members of the scooterist about the accident.

Another person, who is alleged to have informedthe police about the number of the jeep, was Chanderdeep. Prosecution did not examine him. As regards PW-11 Kuldip Kumar, none of the witnesses, including Investigating Officer, stated that the number of jeep was disclosed by this witness. Also, the statement of this witness shows that probably he was not on the spot. He does not know the distance between the place of accident and the Police Station. According to him, distance is 3-4 kilometres, but according to FIR, the distance is only 2 k.m. Similarly, he says that on the fateful day he had gone from his village Lathiani to see his "Chachi" at Nadaun and while going there, he saw the accident taking place. It has been pointed out that if one has to come from the place of this witness, i.e. Lathiani, place of accident would not fall on the way.

In view of the above stated position, I am of the considered view that case against the petitioner cannot be said to have been proved, beyond reasonable doubt. Hence, revision petition is allowed. Conviction and sentence of the petitioner for offences, under Sections 279 and 304A IPC, as recorded by the trial Court and upheld by the Sessions Court, ...6...in appeal, are set aside and he is acquitted. Fine, if already paid, shall be refunded to the petitioner.